Citation Nr: 0608634
Decision Date: 03/24/06 Archive Date: 04/04/06
DOCKET NO. 00-14 551A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, claimed as schizophrenia.
REPRESENTATION
Appellant represented by: Nancy Foti, Attorney
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant served on active duty from January 28, 1977, to
February 21, 1977.
This matter comes before the Board of Veterans' Appeals
(Board) by order of the United States Court of Appeals for
Veterans Claims (Court) on August 25, 2005, which vacated an
August 2004 Board decision and remanded the case for
additional development. The issue initially arose from a
June 1999 rating decision by the New York, New York, Regional
Office (RO) of the Department of Veterans Affairs (VA).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
In its August 2005 order the Court incorporated the
instructions of a joint motion for remand which provided, in
essence, that VA had failed to provide adequate reasons and
bases for rejecting VA medical opinions in support of the
appellant's claim and had failed to meet its duty to assist
by securing Social Security Administration (SSA) and VA
medical records.
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became
law. Regulations implementing the VCAA have been published.
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). A
review of the record shows the appellant was notified of the
evidence not of record that was necessary to substantiate his
claim and of which parties were expected to provide such
evidence by correspondence dated in January 2002 and
July 2003.
During the pendency of this appeal, the United States Court
of Appeals for Veterans Claims (Court) also issued a decision
in the consolidated appeal of Dingess/Hartman v. Nicholson,
Nos. 01-1917 and 02-1506 (U.S. Vet. App. Mar. 3, 2006),
finding that the VCAA notice requirements applied to all
elements of a claim. As the case is being remanded for
additional development, appropriate action should be taken to
ensure adequate VCAA notice as to all elements of the claim
is provided.
The Board notes the revised VCAA duty to assist requires that
VA make reasonable efforts to assist the claimant in
obtaining evidence necessary to substantiate a claim and in
claims for disability compensation requires that VA provide
medical examinations or obtain medical opinions when
necessary for an adequate decision. See 38 C.F.R. § 3.159
(2005). For records in the custody of a Federal department
or agency, VA must make as many requests as are necessary to
obtain any relevant records, unless further efforts would be
futile; however, the claimant must cooperate fully and, if
requested, must provide enough information to identify and
locate any existing records. 38 C.F.R. § 3.159(c).
A medical examination or medical opinion is deemed to be
necessary if the record does not contain sufficient competent
medical evidence to decide the claim, but includes competent
lay or medical evidence of a current diagnosed disability or
persistent or recurrent symptoms of disability, establishes
that the veteran suffered an event, injury, or disease in
service, or has a disease or symptoms of a disease manifest
during an applicable presumptive period, and indicates the
claimed disability or symptoms may be associated with the
established event, injury, or disease. See 38 C.F.R
3.159(c)(4).
On his application for VA compensation, received in June
1998, the veteran indicated that he was in receipt of Social
Security Administration Supplemental Security Income (SSI)
benefits. During VA outpatient treatment in June 2001, he
reported that he had been in receipt of SSI since 1994.
In this case, the record shows that attempts to obtain the
appellant's service medical records were unsuccessful and
that VA medical opinions supporting the claim were apparently
provided without review of the evidence of record.
Correspondence dated in May 2003 indicates additional VA
medical records pertinent to the appellant may exist at
facilities in Los Angeles, California. In the absence of
service medical evidence of disability or a medical nexus
opinion based upon a complete review of the evidence of
record, the Board finds further development is required for
an adequate determination.
Accordingly, the case is REMANDED for the following action:
1. The appellant must be provided
notification (1) of the information and
evidence not of record necessary to
substantiate his claim, (2) of the
information and evidence that VA will
seek to provide, (3) of the information
and evidence that he is expected to
provide, and (4) to request or tell him
to provide any evidence in his possession
that pertains to the claim. These notice
requirements are to be applied to all
elements of the claim.
2. The appellant should be contacted and
requested to identify any additional
existing VA or non-VA medical records
pertinent to his claim. After the
appellant has signed the appropriate
releases, those records should be
obtained and associated with the claims
folder. All attempts to procure records
should be documented in the file. If
records identified by the appellant
cannot be obtained, a notation to that
effect should be inserted in the file.
The appellant and his representative are
to be notified of unsuccessful efforts in
this regard, in order that the appellant
be provided the opportunity to obtain and
submit those records for VA review.
3. Appropriate efforts should be taken
to obtain a copy of any Social Security
Administration disability determination,
including any SSI determination, as well
as all associated records.
4. The appellant should be scheduled for
a VA psychiatric examination for an
opinion as to whether there is at least a
50 percent probability or greater (at
least as likely as not) that he has any
present psychiatric disorders as a result
of service. All indicated tests and
studies are to be performed. Prior to
the examination, the claims folder must
be made available to the physician for
review of the case. A notation to the
effect that this record review took place
should be included in the report.
Opinions should be provided based on the
results of examination, a review of the
medical evidence of record, and sound
medical principles. All examination
findings, along with the complete
rationale for all opinions expressed,
should be set forth in the examination
report.
5. The appellant must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications, including the address
where the notice was sent must be
associated with the claims folder. The
appellant is to be advised that failure
to report for a scheduled VA examination
without good cause shown may have adverse
effects on his claim.
6. After completion of the above and any
additional development deemed necessary,
the issue on appeal should be reviewed.
If any benefit sought remains denied, the
appellant and his representative should
be furnished a supplemental statement of
the case and be afforded the opportunity
to respond. Thereafter, the case should
be returned to the Board for appellate
review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).